The Civil Dispute Resolution Act of 2011 - Essay Example

Name: Professor: Course: Date of Submission: The Civil Dispute Resolution Act of 2011 Executive Summary Very few judicial systems, if any, could be said to be absolutely agile. This implies that most of the judicial systems in the world today and since time immemorial, have had weaknesses (Kane, 81). As a result, governments and law makers have been faced with the challenge of drafting and amending their respective laws in the quest for a better judicial system with the needed agility (Kane, 83). As such, the world, especially today, is that of “structural reforms.” It is in the light of the above that Australia came up with Civil Dispute Resolution Act 2011 [Act nº 17 of 2011; an Act relating to the resolution of civil disputes, and for related purposes]. Introduction It is typical for human beings to seek for justice and mediation. The mechanism that the parties seek depends on the nature of the dispute as well as the level of the parties involved (Lauer & Stock, 67). As young people, our elders will say a word and at once there’s is peace. As adults however, there cannot be peace and mediation through fist fighting. Similarly, there cannot be peace by the single word that our mothers say as it is with the case of children (Lauer & Stock, 71). This way, mothers do not judge, instead judges do. The only way out therefore becomes arraigning the parties before the court of law (Lauer & Stock, 72). Although the courts are the preferred places for mediation, it is not mandatory that everyone will like the procedures that lead to the same. Regardless of how one takes the verdict and the procedures, what most judicial systems tend to do is “force” the parties concerned to “open their mouths and eat the candy pie” called mediation (Lauer & Stock, 77). Many scholars have therefore sought to “disagree” with this notion. To the critics of this traditional approach argue that by “forcing” mediation to the people, the judicial systems would not be doing what in essence is supposed to be done (Lauer & Stock, 83). The judicial systems would not be promoting mediation; rather, the judicial systems would be instituting the tyranny of mediation, because it is good for either party. This paper examines the Civil Dispute Resolution Act, 2011. According to the paper, one key objective of the Civil Dispute Resolution Act, 2011 is to bring about a cultural change in the conduct of legal actions (Lauer & Stock, 87). As a result of this Act, lawyers shall not regard themselves entirely as litigators or legal advisers but also as disagreement managers. The paper attempts to give a keen scrutiny of this proposition in relation to the Act as well as to legal culture (Lauer & Stock, 91). The Civil Dispute Resolution Act of 2011 The Civil Dispute Resolution Act 2011 is an Act that has been touted as an “extra-ordinary” Act by players in the judicial systems. This Act nº 17 of 2011; an Act relating to the resolution of civil disputes, and for related purposes aims to revolutionalize the way mediation and litigation is done (Bird, 23). Object of Act This Act aims to achieve a number of things, such as ensuring that “as far as possible, people take genuine steps to resolve disputes before certain civil proceedings are instituted” in the Federal Court of Australia or in the Federal Magistrates Court. The Act is in the light of the government’s Strategic Framework for Access to Justice in the Federal Civil Justice System. This aims to encourage more effectual and timely argument resolution as a way of beating accumulation of cases and access to justice (Bird, 27). The Act comes into effect as a result of the recommendations from the National Alternative Dispute Resolution Advisory Council. It came into effect on the 1st of August 2011. This Act has been met by mixed criticism as well as applause. According to the critics of this Act, it intrudes into the citizens’ free will to choose i.e. the citizens have been denied the rightful choice to take proceedings in open court (Bird, 25). This new Act also requires that parties settle and mediate disputes. In addition, it requires that the parties remain positive, genuine, and honest. Critics argue that the Act is too idealistic for requiring disputants to take to this with an ear-to-ear smirk (Kane, 83). Litigation Process Litigation is a process that goes on in every person’s life. As a tradition, litigators or trial lawyers stand in for plaintiffs and defendants. This is usually in civil courts (Kane, 87). The work of these litigators will be to handle the litigation procedures such as investigations, pleading and discovery. In addition, the lawyers will be with their clients during the pre-trial procedures; trials, settlement as well as the petition procedures (Kane, 89). The kind of roles that litigation lawyers do depends on the kind of dispute at hand, the expertise of the lawyer and whether the lawyer is standing in for a defendant or a plaintiff (Kane, 91). Initial Case Investigation or Assessment As a lawyer, the litigation process kicks off by the lawyer looking for evidence. This way, the litigation attorneys usually carry out early investigations. For the plaintiff, the lawyer will be out to look for enough evidence necessary to file a case (Kane, 93). On the other hand, if the lawyer is representing a defendant, his or her role will be one of looking for evidence to shield a possible law suit. The process of establishing evidence entails interviewing the client and potential witnesses and documenting the facts about the case (Kane, 94). Pleadings The lawyers have a responsibility of drafting a number of pleadings as well as motions on behalf of their clients. This way, the lawyer writes summons and complaint to start off a lawsuit on behalf of the plaintiff (Kane, 95). On the other hand, defense attorney will act in collaboration with the client to gather as enough evidence as possible and come up with the likely responses (Kane, 103). The lawyer will also come up with a number of motions including those relating to striking, dismissal, and amendment as well as change of venue for the proceedings. Discovery In litigation process, discovery involves the trading of pertinent information between parties in the dispute. The lawyers will resort to a couple of methods to get to the needed information (Saunders & Le Roy, 60). The methods include: interrogations, depositions as well as pledge for production and admission. The lawyers might also carry physical examination. In addition, they may also draft motion for protection or compelling (Saunders & Le Roy, 67). Pre-Trial This is a stage just before the case begins in court. During this stage, the litigation attorneys do final touches on the collected evidence about the dispute. The lawyers also consult with and advise their clients (Saunders & Le Roy, 69). The litigation lawyers will also keep professional witness and listen to pre-trial conferences. Ultimately, the lawyers draft the pre-trial motions. Trial Studies have shown that many of the cases that are filed to go before the civil courts end earlier before trial. In the event that the cases proceed to the trial stage, the lawyers brace up as they represent their clients before the courts (Saunders & Le Roy, 70). Before going for the court sessions, the lawyers collaborate with the specialists and clients to iron out key issues in the case. They also come up with persuasive arguments for the case in addition to cross-examining the witnesses and preparing for the testimonies. Similarly, the lawyers will conduct the viol dire and give out the opening and closing statements (Saunders & Le Roy, 73). Settlement A good number of cases that get to the courts do not actually get to the trial stage (Dellit & Fisse, 99). Litigation lawyers could opt to settle the cases at any other stage on its way to the settlement. Should the case get to the settlement stage, then the lawyers will engage in dialogue, mediations as well as settlement meetings with the concerned people and the judge. At the end, the concerned parties release the agreement as well as other relevant settlement materials (Dellit & Fisse, 97). Appeal In the event that the lawyer in litigation does not agree with the outcome of the court, the law gives them a chance to appeal. They thresh out the issues of contention and draft an appeal. This will be followed by organization of the evidence against the initial ruling and presenting the same in the appellate courts (Ayres & Braithwaite, 23). Lawyer as Dispute Managers As observed above, traditionally, lawyers see themselves purely as litigators or legal advisers. With the current developments in the justice systems in the world, there has been debate as to whether lawyers could also be dispute managers (Ayres & Braithwaite, 25). Legal scholars have argued for the need to have lawyers look into possibilities of arbitration as a way of going about dispute resolution (Ayres & Braithwaite, 25). These legal advisers maintain that the current state of affairs present a scenario where a lot of time is expended in the court rooms. According to this theory, lawyers standing in as arbitrators will not only decongest the prisons but will also generate more revenue (Ayres & Braithwaite, 35). It is important to note that courts have remained as a regular means of solving disputes. Through the courts, the rights and liabilities of litigants are expected to be upheld in a satisfactory and objective manner (Ayres & Braithwaite, 37). However, a number of weaknesses could be seen in the quest of doing this. Legal practitioners of the modern day have identified a number of weaknesses that befalls the courts. According to them the modern day court system is grapples with processes that are exceedingly time-consuming and energy-expending (Ayres & Braithwaite, 39). Similarly, the courts system remains too technical, burdensome, confrontational and antagonistic. This is a picture that is likely to stifle the free flow of processes that will ultimately secure justice in fairness and in good time (Ayres & Braithwaite, 37). The above problems have been seen to lead to unavoidable court congestions. In addition, the court litigation processes have been plagued with infamous case adjournments. The litigants know when the case kicks off but can not adequately tell when the sittings will end because of the cases going on ad-infinitum (Ayres & Braithwaite, 41). It is in the light of the above mentioned problems couple with the intricacy of the world economies and the competitiveness of the commercial world that have made it necessary that changes be instituted in the way litigation and arbitration is done (Ayres & Braithwaite, 42). Central at the need for a revolution in attaining arbitration is the need to have a mechanism that would afford and produce faster decisions and are less controversial when implemented (Ayres & Braithwaite, 45). The mechanisms are deemed to be relaxed, confidential, classified, and sociable. The resolution henceforth attained is obligatory and enforceable. On top of that, the concerned parties take on the arbitrators who take the chair over their disputes (Ayres & Braithwaite, 47). In countries such as Australia, the need to have a change in the way the lawyers work as a way of improving the justice system necessitated the drafting of the Civil Dispute Resolution Act, 2011. Cultural Change in the Conduct of Litigation With the inception of the Civil Dispute Resolution Act, 2011 in Australia, there was expected to be a change in the way things are done especially as it regards to the practice of law. As earlier on observed, traditionally lawyers remained with the role of litigating and advising their clients (Ayres & Braithwaite, 57). With stipulations such as the Civil Dispute Resolution Act, 2011, the lawyer’s role extends to dispute management. Dispute Management Process Despite the best of the intentions, disputes are always bound to occur between individuals or entities in society. Legal experts however advise that these disputes can be handled before they graduate into litigation by the court of law (Dellit & Fisse, 110). In order to adequately address this, the concerned parties need an excellent dispute management process. This process can be handled by an in-house lawyer as a mediator. Dispute management and resolution stands on the premise that the mediator remains forceful, empathetic but at the same time being realistic. This way, the lawyer acting as the mediator will lead the parties through the dispute (Dellit & Fisse, 112). He or she will guide the concerned parties to embrace their dispute and contention through the use of ground-breaking and attested means. The essence of the lawyer is to help the parties in conflict to build bridges through the conflict. The lawyer using his or her skills forges a way that results in a satisfactory and palatable manner. This spirit is enshrined in the Civil Dispute Resolution Act, 2011 (Dellit & Fisse, 113). Dispute Management in the Civil Dispute Resolution Act, 2011 It has been argued that this Act brings about a shift from the norm in the way arbitration is done. According to legal pundits, the Act extends the role of lawyers to that of dispute managers (Dellit & Fisse, 106). Through its section 4, entitled “Genuine Steps to Resolve a Dispute” the Act gives a way through which an applicant can seek for arbitration without going to the civil court. To do this, the applicant will be required by the Act to notify the 2nd party about the dispute. In response, the other person responds appropriately about the said dispute (Dellit & Fisse, 108). There should be enough information given to enable the other person to fully understand what is required to resolve the conflict. The person then responds and gives his or her opinion regarding the offer as stipulated in the earlier notification. At this point, one could also consider using alternative dispute resolving process (Dellit & Fisse, 109). Genuine Steps The Act embodies the need to “take genuine steps” to settle the argument prior to commencing of a civil action. In this Act, a “genuine step” is defined as "a sincere and genuine attempt to resolve the dispute, having regard to the person's circumstances and the nature and circumstances of the dispute" (Dellit & Fisse, 117). The genuine steps include: Informing the other individual of the matters and offering to talk about them; Availing pertinent information and paperwork to the other party; Looking into the use of optional dispute resolution; and Making use of alternative argument resolution procedure (Dellit & Fisse, 119). This way, anybody who has a complaint against the other will have to file a “genuine steps statement.” As a show of good faith, the other person in the suit will have to file a “genuine steps statement in reply.” In the “genuine steps statement in reply,” the person indicates the proposed settlement. In the event that the response was rejection of the settlement, the accused person must serve the complainant the reasons why (Dellit & Fisse, 119). In case the genuine steps statement is not dully filled, the applicant can still go ahead with the lawsuit. Failure to fill and submit the genuine steps statement does not hinder commencing of the lawsuit. Similarly, failure by the respondent to reply to the genuine steps from the applicant prevents proceedings from going on (Dellit & Fisse, 121). Role of Lawyers As outlined in section 9 of the Act, “Duty of lawyers to advice people of the requirement of this Act”, the Act also stipulates what lawyers are expected to do. According to the Act, the lawyers are obliged to give advice to the clients about the necessity of filling the genuine steps statement and help them in complying (Dembiec, 34). The Act sates as thus: “A lawyer acting for a person who is required to file a genuine steps statement must: (a) advise the person of the requirement; and (b) assist the person to comply with the requirement” In the event that the lawyer does not live to this requirement, the courts have been empowered to award individual levies that cannot be re-reimbursed from the lawyer’s client (Dembiec, 56). Dispute management will be more pronounced especially within the corporate world. Legal experts have maintained that management of disputes including the litigation option is of essence to every company (Dembiec, 57). Lawyers will therefore help companies to draft dispute management policies and procedures. This way, the lawyers through the company’s relevant department will bring on board efforts that are geared towards making the corporate body more legally aware of the likely disputes (Dembiec, 59). The lawyer also advises the company on issues to do with compliance especially in areas related to liability creating. In the event of a dispute, the lawyer will foresee and direct the company on the merits of each dispute through a keen analysis and assessment (Dembiec, 59). Furthermore, the company will be required to come up with a dispute management team as the lawyer deems fit. At the same time, the lawyer drafts corporate policies in dispute management. The policy could bear among other things: the extent of representation by the counsel; the expected input in terms of budgeting and risk assessment as well as control; and the basis in the way the fees shall be calculated and charged (Dembiec, 63). It is important that people and corporate have other ways of seeking arbitration, with the court being one of them. Through the services of lawyers, anybody seeking arbitration would be advised accordingly on which methods best suit them (Dembiec, 65). For instance, depending with the nature of the dispute, the lawyer will advise to seek mediation in the courts or explore other alternative methods of dispute resolution (Dembiec, 67). Critique of the Civil Dispute Resolution Act, 2011 The Civil Dispute Resolution Act, 2011 has been received with mixed reaction from different stake-holders. Whereas the proponents of the Act believe solidly in the ability of the Act to change around the current state of affairs, its critics remain sceptic about it. On one hand, the government and the lawmakers believe that the Act will go a long way in enhancing efficiency in the judicial system (Williams, 40). They maintain that the act will save on the rate payer’s money as will as save on time. Eventually, it is hoped that the speedy handling of the cases would result into timely judgement and administering of justice, something that will decongest the prisons. On the whole therefore the Act comes as a saviour especially to the already overburden courts (Williams, 40). On the other hand, critics of the theory argue that the Act put pressure on already pressured system. It has been termed as “mere wishful thinking” by the critics. To them, making these pre-trial processes mandatory will add costs to the people (Williams, 44). Ironically, the critics suggest that the Act overburdens the judges, increases unnecessary rules and regulations and hence expense. In the same breath, those who are sceptical about this Act hold that it will be almost impossible to account for the monetary benefits that accrue form the implementation of this Act (Williams, 45) Conclusion By nature, human beings are prone to disagreements. This implies that by nature, there should be a way to deal with disagreements whenever they occur. In the case of young children, disputes are simply settled a single word that their superior utters in their direction. However this is not possible for adults. Adults have to seek for more appropriate means of settling disputes. Typically, people seek for mediation form the courts of law before a jury or judges. In legal terms, justice delayed in justice denied. But there got to be justice after all. This desire for timely justice has been central on many law makers mind. Governments have tried as much as possible to come up the judicial systems that aim at reducing bug log in the courts and make the court process swift and efficient. This is in the bid to decongest the courts as well as reduce pressure on the prisons. One sure way of arriving at arbitration without having to go through the civil courts is by means of mediation. This entails employing alternative dispute resolution mechanisms with the advice of lawyers. It is in that light of the above tat Australia came up with the Civil Dispute Resolution Act, 2011. Although deemed to be successful, the Act has received mixed reactions of criticisms and praise. In general, one major tenet and objective of the Act was to extend the work of lawyers from purely being litigators and legal advisers, to being dispute managers. This paper gave an analysis of the proposition that the Civil Dispute Resolution Act, 2011aimed to bring about a cultural change in the conduct of litigation such that, lawyers will not have see themselves purely as litigators or legal advisers but also as dispute managers. Work Cited Lauer, M. & Stock, C. Make Your Selection of Counsel More Than a Beauty Contest, “Canadian Corp. Couns”. Prac. Manual, 1998. Dembiec, M. Manage Your Case before It Starts. Washington: House Counsel, winter 1999. Kane, S. The Role of the Litigation Attorney. Chicago: Wiley & Sons, 2009. Ayres, I. & Braithwaite, J. Responsive Regulation: Transcending the Deregulation Debate, Oxford University Press, Oxford, 1992. Bird, H. The Problematic Nature of Civil Penalties in the Corporations Law. “Company and Securities Law Journal” vol. 14, 1996. Braithwaite, J. To Punish or Persuade: Enforcement of Coal Mine Safety, State University of New York Press, Albany, 1985. Dellit, C. & Fisse, B. Civil Liability under Australian Securities Regulation: The Possibility of Strategic Enforcement in Securities Regulation in Australia and New Zealand, eds G. Walker and B. Fisse, Oxford University Press, Auckland, 1994. Fisse, B. & Braithwaite, J. Corporations, Crime and Accountability, Cambridge University Press, Cambridge, 1993. Gething, M. Do We Really Need Criminal and Civil Penalties for Contraventions of Directors’ Duties? “Australian Business Law Review”, vol. 24, 1996. Grabosky, P. “Discussion Paper: Inside the Pyramid: Towards a Conceptual Framework for the Analysis of Regulatory Systems”, International Journal of the Sociology of Law, 1997. Gunningham, N. & Johnstone, R. “Regulating Workplace Safety: Systems and Sanctions”, Oxford University Press, Oxford, 1999. Haines, F. Corporate Regulations: Beyond “Punish or Persuade”, Clarendon Press, Oxford, 1997. Hawkins, K. Environment and Enforcement, Oxford University Press, Oxford, 1984. Richardson, G., Ogus, A. & Burrows, P. Policing Pollution: A Study of Regulation and Enforcement, Oxford University Press, Oxford. Senate Standing Committee on Legal and Constitutional Affairs, Company Directors’ Duties: Report on the Social and Fiduciary Duties and Obligations of Company Directors, Australian Government Printer, Canberra, 1983. Behrendt, L. Aboriginal Dispute Resolution: A step towards self determination and community autonomy. Sydney: Federation Press, 1995. Trees, K. Contemporary Issues Facing Customary Law and the General Legal System: Roebourne – a case study, LRCWA, Project No 94, Background Paper No 6, 2004. Debelle, B. ‘Aboriginal Customary Law and the Common Law’ in Johnston E, Hinton M & Rigney D (eds), Indigenous Australians and the Law. Sydney: Cavendish, 1997. Williams, N. Two Laws: Managing disputes in a contemporary Aboriginal community. Canberra: Australian Institute of Aboriginal Studies, 1987. Australian Law Reform Commission (ALRC), ‘Traditional Aboriginal Society and Its Law’ in Edwards WH (ed), Traditional Aboriginal Society (Melbourne: MacMillan, 1998. The Civil Dispute Resolution Act 2011. Sackville, R. The 2003 Term: The Inaccessible Constitution’. Paer presented to the 2004 Constitutional Law Conference, University of New South Wales, Sydney, 2003. Saunders, C. & Le Roy, K. The Rule of Law. Sydney: The Federation Press, 2003. United Nations (1976) International Covenant on Civil and Political Rights. URL: http://www.unhchr.ch/html/menu3/b/a_ccpr.htm (Accessed 22 Aug 2011). Warhurst, J. & Simms, M. 2001: The Centenary Election. Brisbane: University of Queensland Press, 2002. Howard, J. Address at Ceremonial Sitting to Mark the Centenary of the High Court of Australia. Supreme Court of Victoria, Melbourne, 6 October 2003. URL: http://www.pm.gov.au/news/speeches/speech514.html (Accessed 22 Aug 2011). Howard, J. ‘RBA man warns of oil threat’ in “Australian Financial Review”, 2004. Read More